CASE OF YELKHOROYEV v. RUSSIA

THIRD SECTION

CASE OF YELKHOROYEV v. RUSSIA

(Application no. 46935/18)

JUDGMENT
 

STRASBOURG

6 October 2020

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

In the case of Yelkhoroyev 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 Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 46935/18) 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, Mr Idris Yelkhoroyev (“the applicant”), on 12 September 2018;

the decision to give notice of the application to the Russian Government (“the Government”);

the parties’ observations;

Having deliberated in private on 15 September 2020,

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

INTRODUCTION

1.  The case concerns the abduction and subsequent disappearance of the applicant’s daughter in North Ossetia-Alania in 2010 and the ineffectiveness of the ensuing investigation into the matter.

THE FACTS

2.  The applicant was born in 1947 and lives in Karabulak, Ingushetia. He was represented by Mr I.K. Gandarov, a lawyer practising in Sunzha, Ingushetia and lawyers from the NGO EHRAC/Memorial Human Rights Centre.

3.  The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.disappearance of Ms Zalina Yelkhoroyeva and surrounding events

5.  The applicant is the father of Ms Zalina Yelkhoroyeva, who was born in 1980. At the material time she and the applicant lived in Karabulak.

6.  On 18 November 2010 her brother (the applicant’s son) Mr T.Ye. was arrested by law-enforcement agents on suspicion of involvement in illegal armed groups. He was taken to a remand prison in Vladikavkaz, North Ossetia-Alania (North Ossetia), about forty-five kilometres from Karabulak. On 1 December 2010 he was taken to a military hospital in Vladikavkaz to be treated for gunshot wounds allegedly inflicted by the law-enforcement officers during his arrest.

7.  At about 11 a.m. on 22 December 2010 Ms Yelkhoroyeva went to see her brother at the hospital. In order to get to Vladikavkaz by car, she needed to pass the “Chermenskiy Krug” checkpoint (also known as KPM-105) situated on the administrative border between Ingushetia and North Ossetia.

8.  Ms Yelkhoroyeva went to the hospital in a taxi, with the driver Mr G., her brother’s wife Ms L.E. and a lawyer Ms B. Upon their arrival, the taxi driver remained outside while the three women went to see Mr T.Ye., whose room was guarded by law-enforcement agents around the clock. It was Ms Yelkhoroyeva’s fourth or fifth visit to her brother at the hospital.

9.  The documents submitted indicate that while Ms Yelkhoroyeva, Ms L.E. and the lawyer were with Mr T.Ye., an officer of the Federal Security Service (FSB) carried out an identification parade (in Russian) by showing him photographs. During the procedure Ms Yelkhoroyeva advised her brother in Ingush not to identify anyone as it was not in his interests. The lawyer Ms B. was in the room for some time and then left, whereas Ms Yelkhoroyeva and Ms L.E. stayed there longer.

10.  Around 4 p.m. that day, as the taxi with all of the passengers was on its way back to Ingushetia, it was blocked by four armoured UAZ vehicles and one silver-coloured VAZ-2114 vehicle. It happened near the village of Novoye in the Prigorodniy district of North Ossetia, about twenty-five kilometres from Karabulak and a few hundred metres from the “Chermenskiy Krug” checkpoint. A group of about six armed men in camouflage uniforms and balaclavas got out of the vehicles. They spoke unaccented Russian and were wearing camouflage or traffic police uniforms. Some of the men were armed with machineguns.

11.  The men ordered everyone to get out of the car and show them their documents. When they learned who Ms Yelkhoroyeva was, they put her in a VAZ-2114 and drove away. The other men ordered the taxi driver, Ms B. and Ms L.E. to drive to the nearby checkpoint and wait for Ms Yelkhoroyeva there. When asked who they were, the men answered that they were from the FSB and the Main Military Intelligence Directorate (GRU).

12.  After waiting for Ms Yelkhoroyeva to return for about half hour, Ms L.E., the taxi driver and Ms B. left the checkpoint. Ms B. got another taxi and went home, while Ms L.E. and the taxi driver went to the nearby settlement of Mayskoye (also spelled Mayskiy) in North Ossetia, on the border with Ingushetia. Ms L.E. lodged an official complaint at the local police station regarding the abduction of Ms Yelkhoroyeva. The taxi driver Mr G. corroborated her statement. While at the police station Ms L.E. received a mobile telephone call from a lawyer who told her that Ms Yelkhoroyeva was most probably being detained at a law-enforcement agency in Magas, Ingushetia. The documents submitted indicate that the complaint lodged at the Mayskoye police station was not duly registered.

13.  The Government did not dispute the factual circumstances as submitted by the applicant or give their own version of events.Official investigation into the disappearance

14.  In reply to the Court’s request for a copy of the entire contents of the criminal case file opened into Ms Yelkhoroyeva’s disappearance, the Government furnished a partial copy of the contents, volumes 2 and 3 of the case file. Each page of the documents had either double or triple numbering. Based on the documents submitted, the investigation in the criminal case can be summarised as follows.

15.  On 24 December 2010 the applicant lodged an official complaint regarding his daughter’s abduction by law-enforcement agents with the Nazran police in Ingushetia. He provided a detailed description of the incident similar to his submissions to the Court and stressed that he believed that his daughter had disappeared in life-threatening circumstances.

16.  In the days that followed and throughout January 2011 the applicant lodged several complaints with the Prosecutor General of Russia, the Prosecutor of the Republic of Ingushetia and the FSB. In those complaints the applicant stated that his daughter had been abducted by State agents in life-threatening circumstances.

17.  On 18 January 2011 the Nazran police transferred the applicant’s abduction complaint of 24 December 2010 to the Prigorodniy District Department of the Investigative Committee in North Ossetia. On 7 February 2011 it opened criminal case no. 21/1648 under Article 126 § 1 of the Russian Criminal Code (“the CC”) (abduction).

18.  On 10 February 2011 the investigators granted the applicant victim status in the criminal case and questioned him. He told them that he had two sons and two daughters, including Ms Yelkhoroyeva and Mr T.Ye., and stressed that, in his opinion, FSB officers had abducted his daughter in connection with their investigations into her brother’s activities. The applicant provided the investigators with the number of the mobile telephone which she had had with her on the day of her abduction.

19.  On 10 March 2011 the investigators examined the crime scene. No evidence was collected.

20.  On 10 March 2011 the investigators questioned the taxi driver Mr G., whose statement about the circumstances of the abduction was similar to the applicant’s submissions to the Court. In addition, he stated that when he and Ms L.E. had reported the incident at the police station in Mayskoye, the latter had received a telephone call from a lawyer who had told her that Ms Yelkhoroyeva had been taken to a law-enforcement agency in Magas, Ingushetia.

21.  On 20 March 2011 the investigators questioned Ms Yelkhoroyeva’s ex-husband, Mr Ge., whose statement provided no information relating to her abduction.

22.  On 21 March 2011 the investigators questioned Ms L.E., whose statement concerning the abduction was similar to the applicant’s submissions to the Court. She did not say who had telephoned her while she had been at the Mayskoye police station and told her that Ms Yelkhoroyeva had allegedly been taken to Magas, Ingushetia.

23.  On 23 March 2011 the investigators questioned Mr T.Ye., who stated that, in his opinion, his sister had been abducted by law-enforcement agents in connection with their investigation into his involvement in illegal armed groups.

24.  On 23 March 2011 the Prigorodniy District Court of North Ossetia (“the District Court”) granted the investigators’ request for a list of the calls made to and from Ms Yelkhoroyeva’s mobile telephone between 20 and 24 December 2010. The documents submitted indicate that the list obtained provided no information relating to either the identities of Ms Yelkhoroyeva’s abductors or her whereabouts.

25.  On 6 May 2011 the investigators questioned the mother of Ms Yelkhoroyeva, Ms S.Ye., who stated that her daughter’s disappearance had to have been connected to the authorities’ investigation into the illegal activities of her brother, Mr T.Ye.

26.  On 11 July 2011 the investigators questioned the lawyer Ms B., who stated that on 22 December 2010 she had gone in a taxi with Ms Yelkhoroyeva and Ms L.E. to visit Mr T.Ye. at the hospital in Vladikavkaz. She had gone there as a replacement for Mr T.Ye.’s legal counsel, who had been unavailable. At the hospital they had seen that Ms Yelkhoroyeva’s brother was being guarded in his room by a guard in a balaclava. There had also been a FBS officer present, who had introduced himself as Alexey. He had carried out an identification parade by showing Mr T.Ye. photographs of a number of people and asking in Russian whether he knew any of them. Ms Yelkhoroyeva had dissuaded her brother in Ingush from identifying anyone. Ms B. had then left the room and waited for Ms Yelkhoroyeva and Ms L.E. outside.

27.  According to Ms B., on their way back from the hospital to Ingushetia, the taxi driver had become increasingly nervous, as he had thought that a car was following them. When they had been about five hundred metres from the “Chermenskiy Krug” checkpoint, their taxi had been stopped by a traffic police officer. Several UAZ vehicles and a VAZ vehicle with other officers had also been at the side of the road. The officer had asked for their identity documents and then for Ms Yelkhoroyeva to get out. He had taken her to the VAZ car, where she had spoken with someone through the window, then another officer, in camouflage uniform and balaclava, had put her in that car and it had driven off. After that, the taxi driver had asked one of the remaining officers where Ms Yelkhoroyeva had been taken. He had been told to wait in the taxi for her at the checkpoint. After waiting at the checkpoint for about twenty minutes, Ms B. had taken another taxi and gone home to Ingushetia, whereas the taxi driver and Ms L.E. had gone to North Ossetia to report the abduction to the police.

28.  On 9 August 2011 the investigators questioned a surgeon from the Vladikavkaz military hospital, Dr P., who stated that on 1 December 2010 Mr T.Ye. had arrived at the hospital with several gunshot wounds to the lower extremities. He had undergone surgery and remained in his room under the constant surveillance of law-enforcement officers in balaclavas. Dr P. had no information about who had visited Mr T.Ye. while he had been in the hospital. On 22 December 2010 Mr T.Ye. had been discharged.

29.  Between 16 and 19 August 2011 the investigators questioned nine officers, all of whom stated that on 22 December 2010 they had been manning the “Chermenskiy Krug” checkpoint. According to their almost identical statements, since armoured UAZ cars passed through the checkpoint on a daily basis they could not remember anything specific concerning the passage of such vehicles on 22 December 2010. None of them had any information concerning Ms Yelkhoroyeva’s disappearance.

30.  On 27 August 2011 the investigators questioned officer B., who stated that he had been the driver of one of the armoured UAZ vehicles operated by the Ingushetia police. In the afternoon of 22 December 2010, as had been recorded in the official departure log, he had indeed gone somewhere in the armoured vehicle, but he could not remember where and why due to the passage of time. He had no information pertaining to Ms Yelkhoroyeva’s disappearance.

31.  On 29 August 2011 the investigators questioned two officers from the Kabardino-Balkaria police special task unit, both of whom denied any involvement in the abduction of the applicant’s daughter. They maintained that they had been in their home region at the time, situated not far from North Ossetia and Ingushetia.

32.  On 4 September 2011 the investigators questioned the officer, who was in charge of maintenance of the fleet of vehicles operated by the Ingushetia police. According to his statement, three UAZ vehicles with the identified registration numbers belonged to various departments of the Ingushetia police and one with the registration number did not. He did not know whether any of those vehicles had been used for any police operations outside of Ingushetia.

33.  On 7 September 2011 the investigation in the criminal case was suspended for failure to identify the perpetrators. The applicant was not informed of that decision.

34.  On 7 June 2012 the investigators’ superior criticised the investigation, stating that it had been ineffective and suspended unlawfully. He ordered that a number of steps be taken. The document stated, amongst other things, the following:

“... The investigation established that at about 4 p.m. on 22 December 2010 ... Ms Yelkhoroyeva had been forced into a UAZ vehicle by unidentified persons and taken away ...

...On 7 September 2011 the investigation was suspended ... this decision was taken prematurely as not all of the necessary steps had been taken. It is necessary to take the following steps: ...

-  identify the UAZ vehicles which had passed through the administrative border of North Ossetia and ... their drivers... and question them;

-  question the witness Mr G. again concerning the circumstances of the abduction;

-  carry out a confrontation between Mr G. and Ms B. concerning their statements about the circumstances of the abduction;

-  request information on the cars from the fleet of vehicles of the Ingushetia [police] and question the drivers of those vehicles as to who had driven them on 22 December 2010; ...”

35.  On 15 July 2012 the investigators again questioned the taxi driver Mr G., who confirmed his previous statements.

36.  The copies of the documents submitted indicate that the investigation was again suspended on 17 August 2012 and that no further active steps were taken to solve the crime.

37.  It appears that the investigation is still ongoing. The whereabouts of Ms Yelkhoroyeva and the identities of the perpetrators of her abduction remain unknown.The applicant’s complaints against the investigators

38.  The documents submitted indicate that the applicant lodged a number of requests with the investigators asking to be kept informed of the progress of the investigation into his daughter’s abduction. The investigators either did not reply or provided a formal reply stating that the investigation was underway. The applicant complained to the District Court about the lack of access to information regarding the investigation. For instance, his requests to the investigators lodged on 1 October 2012, 9 and 29 November 2012, and then 19 February 2013 either remained unanswered or information was given to him only after he had complained to the District Court. His subsequent requests for information as to the progress of the investigation lodged on 26 June and 5 September 2013, 11 February and 8 May 2015 were granted only in part. He again complained to the District Court about the lack of information, but to no avail.

39.  Then, on 28 July and 18 September 2015 and 2 March 2016 the applicant complained to the investigators’ superiors, asking that they compel the investigators to expedite the search for his daughter. On each occasion he was informed that all necessary investigative steps were being taken. No other information was provided. It appears that he only received a reply on 6 April 2016 stating that the investigation had been suspended in 2012.

40.  On 4 August 2016 the applicant appealed against the suspension of the investigation to the District Court, which dismissed his appeal on 14 August 2017. The applicant’s subsequent appeals against the suspension were finally dismissed on 12 March 2018 (in the documents submitted the date was also referred to as 12 September 2018) by the Russia Supreme Court as lodged out of time.

RELEVANT LEGAL FRAMEWORK

41.  For a summary of the relevant domestic law and international materials, see Turluyeva v. Russia (no. 63638/09, §§ 56-74, 20 June 2013).

THE LAWALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

42.  The applicant alleged that his daughter Ms Zalina Yelkhoroyeva had been abducted by State agents and that the authorities had failed to effectively investigate the matter. He relied on Article 2 of the Convention, which reads as follows:

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

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

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

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

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

43.  The Government submitted that the application should be rejected as lodged out of time. According to them, the applicant should have realised at an earlier date that the investigation into his daughter’s disappearance had been unproductive.

44.  The applicant submitted that he had complied with the admissibility criteria by lodging his application without undue delay.The Court’s assessment

45.  A summary of the principles concerning compliance with the six‑month rule in disappearance cases may be found in Sultygov and Others v. Russia (nos. 42575/07 and 11 others, §§ 369‑74, 9 October 2014).

46.  The documents submitted show that the domestic investigation in the criminal case concerning Ms Yelkhoroyeva’s disappearance began about seven and half years prior to the lodging of the application with the Court. They also show that the applicant complained to the authorities shortly after his daughter’s disappearance, provided detailed statements to the investigators and took other steps, such as making complaints to the investigators’ superiors and domestic courts in attempts to have the proceedings expedited, despite the lack of information on the progress of the investigation (see paragraphs 15, 16, 18, 38 and 39 above).

47.  Considering the overall time frame of lodging the application with the Court (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 165, ECHR 2009), along with the applicant’s active stance in the proceedings, the Court does not find that the lack of progress of the investigation into his daughter’s disappearance should be held against the applicant or interpreted as either a failure on his part to demonstrate due diligence or comply with the six-month requirement (see, by contrast, Doshuyeva and Yusupov v. Russia (dec.), no. 58055/10, 31 May 2016).

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

49.  The Court further notes that the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsAlleged violation of the substantive aspect of Article 2 of the Convention

50.  The applicant submitted that his daughter had been abducted by State agents, which was confirmed by eyewitness statements given to the investigators.

51.  The Government did not submit any comments on the merits of the complaint.

52.  The Court notes that it has adjudicated a series of cases concerning allegations of disappearances in the Russian North Caucasus. It has concluded that it would be sufficient for the applicants to make a prima facie case of abduction of the missing persons by State agents, thus falling within the control of the authorities, and that it would then be for the Government to discharge their burden of proof, either by disclosing documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, for example, Aliyev and Gadzhiyeva v. Russia, no. 11059/12, 12 July 2016 and Alikhanovy v. Russia, no. 17054/06, 28 August 2018, and for the abduction of a woman by State agents at a checkpoint Dzhalilov v. Russia, no. 11499/14 [Committee], 21 January 2020). If the Government failed to rebut this presumption, this would entail a violation of Article 2 of the Convention in its substantive part. Conversely, if the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012).

53.  The particularities of the case as highlighted by the applicant suggest that State agents were the perpetrators of Ms Yelkhoroyeva’s abduction. She was taken into a vehicle by a group of armed men in camouflage uniforms after being stopped by the traffic police in the vicinity of the checkpoint. The eyewitnesses, who were with the applicant’s daughter at the time, confirmed that version of events in their statements given to the investigators (see paragraphs 20, 22 and 27 above).

54.  Even though there was evidence confirming the applicant’s allegations concerning the circumstances of his daughter’s abduction, the authorities appear to have been reluctant to actively investigate the matter (see, for example, paragraphs 12, 17 and 34 above). This is enough for the Court to conclude that the applicant has made out a prima facie case that Ms Yelkhoroyeva was abducted by State agents.

55.  In the absence of any explanation from the Government for the events in question, the Court finds that the applicant’s daughter was arrested by State agents.

56.  There has been no reliable news of the applicant’s missing daughter since her arrest in December 2010. In a situation where a person is detained by State agents without any subsequent acknowledgment of the detention and is then missing for several years, that situation can be regarded as life‑threatening. The absence of Ms Yelkhoroyeva or any news of her for more than nine years supports this assumption.

57.  Accordingly, the Court finds that Ms Yelkhoroyeva must be presumed dead following her unacknowledged detention by State agents.

58.  In the absence of any explanation or submissions to the contrary from the Government, the Court finds that her death can be attributed to the State and that there has been a violation of the substantive aspect of Article 2 of the Convention.Alleged violation of the procedural aspect of Article 2 of the Convention

59.  For a summary of general principles reflecting the Court’s approach to the examination of allegations of a violation of the procedural aspect of Article 2 of the Convention, see Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 169-82, 14 April 2015) and Mazepa and Others v. Russia (no. 15086/07, §§ 69-70 and 74, 17 July 2018).

60.  The Court notes that despite being informed of the abduction on 24 December 2010, the authorities did not open a criminal case into the matter until 7 February 2011, almost a month and half later (see paragraphs 15 and 17 above). From the very beginning of the investigation the applicant and his relatives consistently alleged that Ms Yelkhoroyeva had been abducted at the checkpoint by State agents, most probably FSB officers, and then taken to Magas, Ingushetia. However, the investigators took no steps to question the FSB officers from Magas or to take any steps to verify whether she could have been detained on those premises, as alleged by the applicants. Moreover, the eyewitnesses to the abduction, Ms B. and Mr G., who provided important evidence, were not questioned until almost three and seven months after the abduction respectively (see paragraphs 20 and 26 above), and the officers who had manned the checkpoint located in the vicinity of the crime scene only eight months after the events in question (see paragraph 29 above). Such significant delays in taking basic steps to verify the witness statements show the investigators’ inability to take timely and effective steps to solve the crime, which is confirmed by their superiors’ criticisms pointing out those failures (see paragraph 34 above). The documents submitted also show that the investigators failed to provide the applicant with information on the progress of the investigation (see paragraphs 38 and 39 above).

61.  Given the shortcomings of the investigation indicated above, and the absence of any comments from the Government on the matter, the Court holds that the authorities failed to carry out an effective criminal investigation into the circumstances surrounding the disappearance of Ms Yelkhoroyeva.

62.  Accordingly, there has been a violation of the procedural aspect of Article 2 of the Convention.ALLEGED VIOLATIONS OF ARTICLES 3, 5 and 13 OF THE CONVENTION

63.  The applicant complained under Article 3 of the Convention of mental suffering caused to him by the disappearance of his daughter Ms Zalina Yelkhoroyeva.

64.  He further complained of a violation of Article 5 of the Convention on account of the unlawfulness of her detention.

65.  The applicant also alleged that he had had no domestic remedies in respect of his complaints under Articles 2, 3 and 5 of the Convention. The relevant provisions read as follows:

Article 3

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

Article 5

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

Article 13

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

66.  The Government did not comment on either the admissibility or merits of these complaints.

67.  The applicant reiterated his submissions.Admissibility

68.  The Court notes that these complaints are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.Merits

69.  The Court has found on many occasions that a situation of enforced disappearance gives rise to a violation of Article 3 of the Convention in respect of the close relatives of the victim. The essence of such a violation lies not so much in the fact of the “disappearance” of the family member, but rather in the authorities’ reactions and attitudes to the situation when it is brought to their attention (see Orhan v. Turkey, no. 25656/94, § 358, 18 June 2002, and Imakayeva v. Russia, no. 7615/02, § 164, ECHR 2006‑XIII (extracts)).

70.  The Court reiterates its findings regarding the State’s responsibility for the abduction of Ms Yelkhoroyeva, as well as the authorities’ failure to carry out a meaningful investigation into the incident. It finds that the applicant, her father, must be considered the victim of a violation of Article 3 of the Convention on account of the distress and anguish he has suffered, and continues to suffer, as a result of his inability to ascertain her fate and of the manner in which his complaints have been dealt with. The Court accordingly finds that there has been a violation of Article 3 of the Convention on this account.

71.  The Court further confirms that since it has been established that Ms Yelkhoroyeva was detained by State agents, seemingly without any legal grounds or acknowledgment of the detention, this constitutes a particularly serious violation of the right to liberty and security of person enshrined in Article 5 of the Convention (see, for example, Imakayeva, cited above, § 178, and Ireziyevy v. Russia, no. 21135/09, § 80, 2 April 2015). The Court accordingly finds that there has been a violation of this provision on account of her unlawful detention. In view of this finding, the Court considers it unnecessary to examine the issue separately under Article 13 of the Convention (see Zhebrailova and Others v. Russia, no. 40166/07, § 84, 26 March 2015, and Aliyev and Gadzhiyeva, cited above, § 110).

72.  The Court observes that the applicant’s complaint under Article 13 in connection with Article 2 of the Convention concerns the same issues as those examined above under the procedural limb of Article 2 of the Convention (see paragraph 62 above). In view of this, the Court considers it unnecessary to examine the issue separately under Article 13 (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).

73.  The Court considers that the applicant did not have at his disposal an effective domestic remedy for his grievances under Article 3 concerning his mental suffering, in breach of Article 13.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.”Damage

75.  The applicant claimed 60,600 Russian roubles (RUB – about 900 euros (EUR)) in respect of pecuniary damage. He based his calculations on the average monthly salary in Ingushetia in 2018 and the average life expectancy of males in that region.

76.  The Government submitted that the claim should be rejected as unsubstantiated.

77.  The applicant also claimed compensation for non-pecuniary damage, in an amount to be determined by the Court.

78.  Regard being had to its findings and the parties’ submissions, the Court awards the applicant EUR 900 in respect of pecuniary damage and EUR 80,000 in respect of non-pecuniary damage, plus any tax chargeable on those amounts.Costs and expenses

79.  The applicant claimed EUR 17,070 in respect of costs and expenses related to his legal representation before the Court by Ms M. Agaltsova from the EHRAC/Memorial Human Rights Centre and Mr I. Gandarov, for 63.2 and 107.5 hours of work respectively at an hourly rate of EUR 100. The applicant enclosed the lawyers’ invoices for the legal services rendered.

80.  The Government submitted that the applicant had failed to substantiate his claim with a legal services agreement which would confirm the necessity and the extent of the expenses incurred.

81.  The Court has to establish whether the costs and expenses were actually incurred and whether they were necessary and reasonable as to quantum (see McCann and Others v. the United Kingdom, 27 September 1995, § 220, Series A no. 324).

82.  Having regard to the conclusions and principles set out above and the parties’ submissions, the Court awards the applicant EUR 2,500, covering costs under all heads, plus any tax that may be chargeable to the applicant on this amount. The award is to be paid into the representatives’ bank accounts, as indicated by the applicant.Request for investigation

83.  The applicant also requested that a fresh investigation complying with the requirements of the Convention be conducted into his daughter’s disappearance and that he be allowed access to the entire contents of the criminal case file opened into the matter.

84.  The Court notes that in several similar cases it has decided that it was most appropriate to leave it to the respondent Government to choose the means to be used in the domestic legal order to discharge their legal obligation under Article 46 of the Convention (see, among other authorities, Tsakoyevy v. Russia, no. 16397/07, § 160, 2 October 2018, and Gisayev v. Russia, no. 14811/04, §§ 181-83, 20 January 2011). It does not see any exceptional circumstances which would lead it to reach a different conclusion in the present case.Default interest

85.  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,Declares the application admissible;Holds that there has been a violation of the substantive aspect of Article 2 of the Convention on account of Ms Zalina Yelkhoroyeva’s disappearance;Holds that there has been a violation of the procedural aspect of Article 2 of the Convention on account of the authorities’ failure to investigate Ms Yelkhoroyeva’s disappearance;Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s mental suffering;Holds that there has been a violation of Article 5 of the Convention on account of Ms Yelkhoroyeva’s unlawful detention;Holds that there is no need to examine separately the complaint under Article 13 in conjunction with Articles 2 and 5 of the Convention;Holds that there has been a violation of Article 13 in conjunction with Article 3 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, 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 900 (nine hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;

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

(iii)  EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, to be paid into the representatives’ bank accounts, as indicated by the applicant;

(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 applicant’s claim for just satisfaction.

Done in English, and notified in writing on 6 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Alena Poláčková
Deputy RegistrarPresident

Full & Egal Universal Law Academy